David A. Plymyer: Political, Social & Random Commentary

Drug dealers know more about what is going on in the BPD than police supervisors.

I will start with the customary caveat that the seven officers of the Baltimore Police Department (BPD) indicted on federal racketeering charges this week are innocent until proven guilty. If they committed half the crimes with which they are charged, however, it is a disappointing indication that little progress has been made in fixing the problem with front line supervision in the BPD since my op ed on that problem was published in the Baltimore Sun on August 18, 2015.

The accusations against the seven officers are especially troubling, even for the BPD. The officers, who were members of the “elite” Gun Trace Task Force, allegedly operated in a manner no different from one of Baltimore’s many violent criminal gangs. The United States Attorney for Maryland, Rod Rosenstein, described them as armed robbers in police uniforms.

The officers indicted included a supervisor, Sgt. Wayne Jenkins. The fact that a police sergeant was allegedly involved in the wrongdoing is hardly surprising. The number of incidents involving sergeants or lieutenants in the BPD over the past four or five years forms a pattern, and the inadequacy of the supervision of the rank-and-file is the crippling weakness of the department. Nothing in the BPD will improve until the front line supervision improves.

Brazen crimes committed by police officers like those described in the indictments do not happen unless the perpetrators believe that they will not get caught. In the BPD part of that equation is the deficiency in front line supervision: Officers are emboldened by the belief that their sergeants are too inattentive or dim-witted to figure out what the officers are doing or, if the sergeants do figure out what they are doing, that the sergeants will turn the other way. It goes without saying that there is even less deterrent if a sergeant is an active participant in the wrongdoing.

There is a rather remarkable and telling finding that appears on page 135 of the report on the BPD by the Department of Justice (DOJ). I’ve mentioned it before, and it is worth repeating. Keep in mind that the DOJ uncovered a widespread pattern and practice of unconstitutional stops and arrests.

“A number of supervisors informed us that they view their role as ‘documenting’ activity rather than assessing whether the activity conformed to policy, or that they believe internal affairs—not direct supervision—is the appropriate vehicle for assessing whether an enforcement action meets policy or constitutional requirements. Indeed, our review did not identify a single stop, search, or arrest that a front line supervisor found to violate constitutional standards—even though numerous incident reports for these activities describe facially unlawful police action.” (Emphasis added.)

In other words, many supervisors in the BPD don’t bother supervising. Needless to say the information that led to the investigation of the seven indicted officers did not come from their supervisors or even from the BPD internal affairs section; it came from information learned by DEA agents during an investigation of a drug ring in the city. Here is what that means, unfortunately: Drug dealers are a better source of information about what is really going on in the BPD than the department’s supervisors or internal affairs investigators.

In addition to the violent crimes described in the indictments there are allegations of systematic overtime fraud involving tens of thousands of dollars; the numbers are so egregious that someone should have taken notice. The most important safeguards against such abuse are the integrity and diligence of the immediate supervisors who approve the overtime. Therefore, don’t be surprised if the audit ordered by the mayor uncovers a much more widespread problem with overtime abuse.

A year after my first op ed on the subject I returned to subject of improving the quality of the front line supervision in the BPD with an op ed published by The Sun on August 17, 2016. By then it was clear to me that it was necessary for the BPD to pick up the pace in its efforts to get rid of the “bad apples” among the supervisory ranks. I recommended that Section 16-7 of the Code of Public Laws of Baltimore City be amended to take sergeants and lieutenants outside of the extraordinary protections of the Law Enforcement Officers’ Bill of Rights (LEOBR) so that the Police Commissioner could act more quickly to replace incompetent supervisors with competent ones.

That idea, along with the idea of getting sergeants and lieutenants out of the same union as the rank-and-file officers that they supervise, went nowhere. The Commissioner’s proposal for better training for new supervisors and re-training current ones, endorsed in the consent decress, is a great idea but is not going to change the culture fast enough. The Commissioner cannot rely on attrition alone for the opportunity to replace bad supervisors with good ones.

It is likely that the pay differential between sergeants and lieutenants and the officers that they supervise must be increased in order to attract the best and the brightest in the rank-and-file to apply for promotions. If the force has to be shrunk a bit to pay for that, so be it. Comparing the needs of cities is complicated, but Baltimore is the 26th largest city in the country by population and has the 8th largest police department. I don’t think I am going out on a limb by saying that the city might be better served by a slightly smaller but higher quality department.

I see in this situation what I see with so many problems in the city regarding public safety and the criminal justice system: An absolute lack of urgency. I am not talking about hysteria or doing things in a heated rush, but there has to be some sense that effective solutions need to be instituted as soon as possible.

The city has an appalling rate of murder and other violent crime, a State’s Attorney’s Office of questionable functionality, and a deeply troubled police department. The problems with the police and prosecutors are so extensive that another issue that merits scrutiny, inconsistent and ineffective sentences imposed by judges, gets crowded out of the spotlight. It does not take Nostradamus to predict that things could get even worse unless changes are made fairly quickly.

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As a follow-up to my post two days ago I can report that on the same day of the post Del. Curt Anderson announced that he was likely to withdraw his bill transferring operational control of the BPD from the state to the city. He gave as a reason an Attorney General opinion that expressed concern that changing the governance at this point could jeopardize the pending consent decree with the DOJ and that warned that if a change was made the BPD would lose the sovereign immunity defense that protects it from tort claims based on violations of the state constitution. State constitutional torts have become a significant source of potential liability for Maryland local governments over the past 20 years.

The issue of interference with the consent decree that the city negotiated with the DOJ might not have been immediately apparent, but the impact on the sovereign immunity defense was something that every member of the city council knew or should have known when the council passed a resolution supporting Del. Anderson’s bill, HB 1504. The lack of awareness shows just how ill-considered this bill was. I will avoid speculating on how many members of the city council knew about the BPD’s sovereign immunity from suit, or bothered to ask. Trust me; there is not a single lawyer in the city solicitor’s office unaware of the issue.

Councilman Brandon Scott, chair of the council’s Public Safety Committee, was the leading proponent of HB 1504. He expressed his disappointment over the bill’s fate with a statement that included the following passage:

“Allowing the functions of the police department to continue as they are today represents a clear example of a broken governance structure. The unchecked and unbalanced power within the oversight structure of the Baltimore Police Department is not representative of true American democracy and is dangerous to its core values.”

Councilman Scott not only has a gift for hyperbole, he has designs on higher office. After the indictment of the seven BPD officers was announced Councilman Scott raced off a letter to the Police Commissioner demanding a review of police overtime, a letter that Councilman Scott also gave to the media. His haste was evident from the lack of proofreading, with the first sentence of his letter stating that the financial misconduct of BPD officers was “frequently” coming under scrutiny “far too often.” I suppose a little redundancy never hurt anything.

Councilman Scott was in a hurry to upstage the mayor, who was in the process of making her own announcement ordering an audit of police overtime. I bring this up only as it bears on the main theme of Friday’s post, which was the leadership vacuum in the city. Mayor Pugh has enough challenges in the leadership department without contending with things like Councilman Scott’s jockeying for political advantage or the tendency of Council President Jack Young to grandstand and run his own game. These three powerful city officials have to pull together if the city has any hope of fixing what ails it.

Mayor Pugh seems like a decent person truly committed to the welfare of the city. She does not have a massive ego and prides herself on her ability to work on a collegial basis and on her willingness to compromise when appropriate. She certainly is not going to overwhelm anyone with her oratory or her charisma, but that is okay – decisive leadership comes in many forms and actions speak louder than words, etc. I believe, however, that she has to learn to assert herself more and demonstrate that she is unafraid of confrontation when it becomes necessary. She will get walked all over if she can’t do that.

I am pulling for Mayor Pugh to succeed – we all should be doing so, because the success of the city depends on it. If that means calling out a council person or two for getting in the way of the success of the mayor, so be it. In my opinion the mayor still has a lot to prove but she should be given a chance to prove it.